Peer-to-peer file sharing as distribution

Apr 28, 2009 Peer-to-peer file sharing as distribution

On April 27, 2009, the Fourth Circuit joined other circuits that consider peer-to-peer file sharing to qualify as distribution under federal Sentencing Guideline § 2G2.2’s sentencing provisions for distribution of child pornography:

"While this circuit has not addressed whether use of a peer-to-peer file-sharing program qualifies as distribution, other circuits have found that it does. The Seventh Circuit upheld a distribution enhancement where a defendant downloaded child pornography through a file-sharing program, since defendant’s choice to ‘knowingly [make] his child pornography available for others to access and download’ fell within the plain meaning of ‘distribution.’ United States v. Carnai, 492 F.3d 867, 875-76 (7th Cir. 2007). The Seventh Circuit found the passive nature of a file-sharing program ‘irrelevant.’ Id. at 876.

"Similarly, the Eighth Circuit upheld a distribution enhancement for a defendant who downloaded child pornography from a file-sharing program and knew that others could download these files from his computer. See United States v. Griffin, 482 F.3d 1008, 1010-12 (8th Cir. 2007). Likewise, the Eleventh Circuit affirmed an enhancement for distributing child pornography through a file-sharing program. See United States v. Mathenia, 409 F.3d 1289, 1290 (11th Cir. 2005).

"We concur with the Seventh, Eighth, and Eleventh Circuits and hold that use of a peer-to-peer file-sharing program constitutes ‘distribution’ for the purposes of U.S.S.G. § 2G2.2(b)(3)(F). When knowingly using a file-sharing program that allows others to access child pornography files, a defendant commits an act ‘related to the transfer of material ‘involving the sexual exploitation of a minor.’ U.S.S.G. § 2G2.2 cmt. n.1."

Additionally, in reviewing Layton’s challenge of the length of his sentence, the Fourth Circuit confirmed that it reviews "the district court’s sentence under an abuse of

discretion standard. United States v. Curry, 523 F.3d 436, 439. Our review involves a two-part inquiry, which first examines any significant procedural error committed by the district court and then considers the substantive reasonableness of the sentence imposed. Id. A district court commits a procedural error if it fails to properly calculate the Guidelines, treats the Guidelines as mandatory, fails to consider the statutory factors under 18 U.S.C. § 3553(a), bases a sentence on facts that are clearly erroneous, or fails to adequately explain the sentence imposed. Gall v. United States, 128 S. Ct. 586, 597 (2007). If no significant procedural error is committed, we then examine the sentence for substantive reasonableness ‘in light of all relevant facts.’ Curry, 523 F.3d at 439." U.S. v. Layton, slip op. at 7-8. Jon Katz.